U.S. v. Tucker
| Citation | 305 F.3d 1193 |
| Decision Date | 16 September 2002 |
| Docket Number | No. 01-4150.,01-4150. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey TUCKER, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
Thomas M. Gannon, Attorney, Department of Justice, Criminal Division, Appellate Section, Washington, DC, (Paul M. Warner, United States Attorney, District of Utah; Richard N. Lambert, Assistant United States Attorney, District of Utah, Salt Lake City, UT, with him on the briefs), for Plaintiff-Appellee.
Deirdre A. Gorman, Ogden, UT, for Defendant-Appellant.
Before BRISCOE, Circuit Judge, BRORBY, Senior Circuit Judge, and MURPHY, Circuit Judge.
The appellant, Jeffrey Tucker, was convicted of one count of possession of child pornography, 18 U.S.C. § 2252A(a)(5)(B), and sentenced to sixty months' imprisonment.1 He appeals his conviction on numerous grounds. We have jurisdiction under 28 U.S.C. § 1291 and affirm.
Tucker was convicted in 1990 in Utah state court for sexually abusing a child. He was paroled by the Utah Department of Corrections in 1996. As part of his parole agreement, Tucker agreed to "permit agents of Adult Probation and Parole to search my person, residence, vehicle or any other property under my control, without a warrant, at any time, day or night, upon reasonable suspicion to ensure compliance with the conditions of my parole." He further agreed to "[n]ot view or have in my possession any material exploiting children or depicting unconsensual sex acts or acts involving force or violence." In another part of the agreement, he agreed to "[h]ave no contact with children under age 18 without the supervision of an adult who is aware of my sexual deviancy." Finally, he agreed to "obey all state, federal, and municipal laws." In June 1998, Tucker was still on parole and subject to the parole agreement.
On June 10, 1998, Corina Groneman, a former employee of the United States Bureau of Reclamation ("Reclamation") spoke over the telephone with Officer Ryan Atack of the Salt Lake City Police Department about Tucker. Groneman told Atack that a friend ("friend 1"), who wished to remain anonymous, had received information that Tucker was viewing child pornography on his computer and had contacted a child. According to friend 1, a friend of his ("friend 2"), who also wished to remain anonymous, visited Tucker at his residence. Friend 2 worked at Reclamation, as did friend 1, Tucker, and Groneman.2 Tucker showed friend 2 child pornography on his computer and informed her that he had met a young girl and might try to arrange another meeting with the child. Groneman never informed Atack of the identity of either friend 1 or friend 2, but she did identify herself and told him she was an employee of the U.S. Attorney's office.
Atack contacted Tucker's parole officer, Ken England, after checking Tucker's criminal history and discovering his parole status. Atack told England that he had received a tip from a citizen that an anonymous individual had seen child pornography on Tucker's computer and had been told by Tucker that he was planning a meeting with a young girl. England spoke with his supervisor, Jennifer Bartell, who concluded that they had reasonable suspicion that Tucker possessed child pornography and had contacted a young girl, both in violation of his parole agreement. They decided to conduct a parole search the next day with the assistance of Atack and other officers of the Salt Lake City Police Department.
On the evening of June 11, 1998, England, Bartell, Atack, and several Salt Lake City police officers searched Tucker's residence. England and Bartell approached the apartment from the front. The screen door on the apartment was closed but the main door was open. Before he entered, England saw Tucker near a computer. England and Bartell entered the apartment. Upon entry, England ordered Tucker away from the computer. Immediately, Detective Rick Gruber, a police officer with expertise in computer crimes, approached the computer. Before taking control of the computer, he noticed that it was connected to the Internet and that Tucker had been visiting a newsgroup3 labeled "alt.sex.preteen." Gruber ran software on Tucker's computer designed to prevent alteration of the hard drive. He then discovered that a large number of files recently had been deleted from Tucker's hard drive. Gruber ran another program that allowed him to view deleted files, but none of the deleted files he viewed contained pornography. In his investigation of Tucker's Web browser history,4 however, he noticed that Tucker had visited other newsgroups whose names suggested they contained child pornography. Gruber informed Tucker that technology existed to recover the deleted files. Parole Agent Bartell then asked Tucker "What are we going to find?" Tucker responded, "There's some stuff on there that's going to cause me problems." Bartell ordered the computer seized.
England and Bartell placed Tucker in administrative custody. After receiving Miranda warnings and waiving his rights, Tucker told investigators that his computer contained over 5,000 images of children between the ages of ten and twelve engaged in sexual acts and poses. He also acknowledged that he had spoken with a seven-year-old girl on two occasions, as the anonymous informant, friend 2, had alleged. Following this interview, Tucker was placed in the custody of the Utah Department of Corrections pending a determination by the Utah Board of Pardons and Parole whether his parole should be revoked.5
Based on the information Tucker provided to officers during the search and subsequent interview, Atack prepared an affidavit for a warrant to search Tucker's computer. A state magistrate found probable cause and signed the warrant. Pursuant to the warrant, Special Agent Daniel Hooper of the Utah Department of Public Safety conducted a forensic examination of the computer on July 28, 1998. Using specialized software, Hooper recovered some 27,000 images stored on Tucker's computer. He estimated that of the .jpg6 images which were viewable, ninety to ninety-five percent were child pornography. Some of those images were very small, called "thumbnail" images, but many were larger images. Hooper recovered files containing child pornography from different parts of the hard drive. Some were located in the Web browsers' cache files.7 Others were located in the computer's recycle bin8 and in "unallocated" hard drive space. Hooper testified that the forensic examination revealed that Tucker accessed the cache files and manually deleted images in the files by dragging them to the computer recycle bin. Hooper rejected the suggestion that Tucker had accidentally run across these images, citing Web browser history files which showed that Tucker repeatedly visited the same sites. Through Hooper, the government also presented an email from Tucker to a Web site operator asking to be given access to pictures of "naked young girls."
Before trial, Tucker moved to suppress the evidence taken in the June 11 search of his apartment and the July 28 search of his computer. He argued that the June 11 search was not supported by reasonable suspicion as required for a parole search. He also argued that the parole search was not conducted to further the purposes of the parole system but was a subterfuge for a law enforcement investigatory search. The district court rejected both arguments. Relying on Utah law, the district court concluded the parole officers had reasonable suspicion. It reasoned that anonymous informants may provide a basis for reasonable suspicion, the level of detail in Groneman's tip was high, and Groneman's tip was corroborated by the officers' investigatory work which revealed that Tucker had been convicted of a crime similar to the one alleged in the tip. The district court also concluded the parole search advanced a parole purpose because the tip contained information indicating that Tucker had violated the terms of his parole.
The district court also rejected Tucker's argument that his parole agreement did not authorize seizure of his computer. The district court acknowledged that the parole agreement did not mention seizures but concluded that "seizure of contraband or evidence garnered from a valid parole search is clearly implicit in any parole agreement." Tucker's final Fourth Amendment argument was that the July 28 forensic examination of his computer was not a valid parole search because Tucker was already in custody and the search could not therefore have any parole purpose. The district court rejected the argument, reasoning that Tucker's parole was not yet revoked when Hooper conducted the forensic examination and the officers "had an incentive to compile evidence that he had violated his parole for use at the [revocation] hearing."
After a bench trial, the district court found the defendant guilty. See United States v. Tucker, 150 F.Supp.2d 1263, 1270 (D.Utah 2001). It found that Tucker visited Web sites that displayed child pornography as thumbnail images. See id. at 1265. Tucker would often select thumbnail images to enlarge them. See id. The district court found that upon visiting a site displaying thumbnail images or upon selecting a thumbnail for enlargement, the images were automatically cached on Tucker's hard drive. See id. The district court found that Tucker had admitted that he routinely accessed the cached images on his hard drive and deleted them after an Internet session. See id.
The district court concluded that Tucker possessed child pornography under the meaning of 18 U.S.C. § 2252A(a)(5)(B) because he had control over the images cached on his hard drive. See id. at 1267. The court reasoned that Tucker's habit of manually deleting images from the cache files established that he exercised control over them. See id. The district court also rejected Tucker's argument that since the ...
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